Citation NR: 9601852
Decision Date: 01/30/96 Archive Date: 02/09/96
DOCKET NO. 94-06 471 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an increased evaluation for a bilateral
hearing loss, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
ATTORNEY FOR THE BOARD
S. P. Candelmo, Associate Counsel
INTRODUCTION
The veteran had active duty from May 1966 to May 1969. This
matter came before the Board of Veterans’ Appeals (Board) on
appeal from an August 1992 rating decision by the Atlanta,
Georgia, Regional Office (RO) which denied an increased
evaluation for the veteran’s bilateral hearing loss. The
veteran has been represented throughout this appeal by the
Georgia Department of Veterans Services.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his bilateral hearing loss has
increased in severity. Accordingly, he asserts that his
respective disability evaluation should be in excess of 20
percent.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against the veteran’s claim for an increased evaluation for a
bilateral hearing loss.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran's claim has been developed.
2. The veteran’s bilateral hearing loss disability is
manifested by an average pure tone threshold of 75 decibels
in the right ear and 37.5 decibels in the left ear, at 1000,
2000, 3000 and 4000 hertz, and by speech recognition of 16
percent in his right ear and 96 percent in his left.
3. Neither an exceptional nor unusual disability picture has
been demonstrated so as to render impractical application of
the regular schedular standards.
CONCLUSION OF LAW
The criteria for an increased evaluation in excess of 20
percent for bilateral hearing loss disability are not met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 3.321(b)(1), Part 4, §§ 4.7, 4.85, 4.86, 4.87, Diagnostic
Code 6101 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, it is necessary to determine if the veteran has
submitted a well-grounded claim within the meaning of 38
U.S.C.A. § 5107(a) (West 1991), and if so, whether the
Department of Veterans Affairs (VA) has properly assisted him
in the development of his claim. A "well-grounded" claim is
one which is plausible. A review of the record indicates
that the veteran's claim is plausible and that all relevant
facts have been properly developed.
I. Increased Evaluation
In July 1975, the RO established service connection for
bilateral hearing loss and assigned a 10 percent evaluation.
In October 1987, the RO increased the veteran’s hearing loss
disability evaluation from 10 to 20 percent. Such rating has
remained in effect to date.
The veteran contends that his bilateral hearing loss
disability is of such severity as to warrant an evaluation in
excess of 20 percent. After a review of the record,
however, the Board finds that his contentions are not
supported by the evidence, and that a higher evaluation is
not warranted.
The severity of hearing loss disability is ascertained, for
VA rating purposes, by application of the criteria set forth
at 38 C.F.R. § 4.87 (1994) of VA's Schedule for Rating
Disabilities, 38 C.F.R. Part 4 (1994) (Schedule). Under
these criteria, the degree of disability for bilateral
service-connected hearing loss disability is determined by
application of a rating schedule that establishes 11 auditory
acuity levels, ranging from Level I (for essentially normal
acuity) through Level XI (for profound deafness). 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, §§ 4.85, 4.86,
4.87, Diagnostic Codes 6100 through 6110 (1994).
The most recent evidence reflecting the severity of the
veteran's hearing loss is the report of a VA audiological
evaluation conducted in March 1992, which shows that the
veteran’s average pure tone threshold at 1000, 2000, 3000 and
4000 hertz was 75 decibels in the right ear and 37.5 decibels
in the left ear. Speech recognition was 16 percent in his
right ear and 96 percent in his left. Under the criteria set
forth in the Schedule, this degree of hearing loss is
assigned Level XI for the right ear and Level I for the left
ear, and warrants an evaluation of 10 percent under
Diagnostic Code 6101 of the Schedule.
When all the evidence is assembled, the Secretary, is then
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against the claim, in which case the claim is
denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).
Although the veteran is competent to allege that he is worse,
the Board concludes that the opinions of competent medical
professionals skilled in the evaluation of hearing loss
disabilities are more probative of the degree of the
impairment than the veteran’s subjective statements, even if
sworn.
Accordingly, the Board must conclude that the preponderance
of the evidence is against the veteran's claim for an
increased evaluation for bilateral hearing loss disability.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 §§ 4.85,
4.86, 4.87, Diagnostic Code 6101 (1994). The clinical
evidence of record clearly shows that the veteran does not
demonstrate hearing loss disability in excess of 10 percent.
In addition, since the medical record does not demonstrate
that his bilateral hearing loss disability has necessitated
either hospitalization or recent outpatient treatment, it
must be concluded that this disorder does not present such an
exceptional or unusual disability picture, as would be
manifested by marked interference with employment or frequent
periods of hospitalization, that would render impractical the
application of the regular schedular standards. 38 C.F.R. §
3.321(b)(1) (1994).
ORDER
The claim for entitlement to an increased evaluation for
bilateral hearing loss is denied.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
- 2 -